Strategic Objective 1: Justice and Opportunity

As legal and business landscapes evolve, we continue to focus on our fundamental responsibility: to correct the wrongs of employment discrimination and bring justice and equal opportunity to the workplace.

Through our Justice and Opportunity Strategic Objective, we strive to remedy and deter unlawful discrimination and increase public confidence in the fair and prompt resolution of employment discrimination disputes. These broad outcomes focus our measures and strategies on three points of our Five-Point Plan: Proficient Resolution, Promotion and Expansion of Mediation/Alternative Dispute Resolution (ADR), and Strategic Enforcement and Litigation.

Proficient resolution connotes the importance of timeliness and quality in service delivery. Our private and Federal sector enforcement programs strive to achieve both success factors-timeliness and quality—in serving our customers.

Private Sector Enforcement Program: Providing quality services that are fair and prompt, for both employees and employers, in our administrative processing system is vital to our mission. In FY 2006, we received 75,768 private sector charges of discrimination, slightly more than the 75,428 received in FY 2005. We also received a net increase of 4,616 charges through net transfers from State and local Fair Employment Practices Agencies and adjustments. We achieved
74,308 resolutions, with a merit factor resolution rate of 22.2%. (Merit factor resolutions include mediation and other settlements and cause findings, which, if not successfully conciliated, are considered for litigation.) In comparison, the merit factor resolution rate for FY 2005 was 21.5%. This left us with a growing pending inventory of 39,946 charges at the end of the fiscal year, compared with the FY 2005 figure of 33,562.

Timeliness is a key measure of our success in processing private sector charges. Measure 1.1.1 tracks our progress in resolving charges in 180 days or fewer. In FY 2006, our target was to resolve 70% of charges within this time frame. We did not meet this target. Rather, 60.7% of charges were resolved in 180 days or fewer. Several factors contributed to this result. While our receipts have stayed level between FY 2005 and FY 2006, our investigator staffing levels have declined, which has
resulted in a growing pending inventory that is correspondingly older. To keep the age of the inventory under control both in this fiscal year and in future years, offices continue to focus on resolving both older cases and newer charges. Further, the average charge processing time was 193 days, up significantly from 171 days in FY 2005. These and other factors are discussed in the Performance Results section of the PAR.

Under Measure 1.3.1, we assess the impact of our resolutions of charges of discrimination obtained by settlement or conciliation agreement where EEOC is a party, except for those charges resolved through our mediation program, which are included in Measure 1.2.1. Our goal for FY 2006 was to maintain our FY 2005 baseline figure of 18.1% of settlement and conciliation resolutions that included improvements made to the workplace by changes to employer policy, practices, and procedures. For FY
2006, 17.8% of the resolutions in our enforcement program (excluding mediated resolutions), or 697 out of 3,914, resulted in employers agreeing to make changes to their workplace practices, policies, and procedures. This slight decrease is likely due to the increase in mediation settlements, which limits the available pool of charges that reach the settlement/conciliation stage in enforcement. The workplace improvements brought about by these resolutions benefited approximately 622,000
individuals in addition to the specific individuals that received relief under the settlement or conciliation agreements.

Through our partnership contracts with 96 State and local Fair Employment Practices Agencies (FEPAs), we continued to resolve dual-filed charges as a means of preventing duplication of effort and streamlining the charge resolution process. FEPA charge receipts decreased by 12.5%, from 55,928 in FY 2005 to 48,926 in FY 2006. FEPAs resolved 50,599 charges, 7.2% fewer than during the previous year.

Federal Sector Enforcement Program: The EEOC is responsible for providing hearings and appeals after the initial processing of the complaints by each individual agency. Unlike our responsibilities in the private sector, we do not process charges of discrimination for Federal employees. In FY 2006, we received 7,802 requests for hearings and 6,743 requests for appeals.

As with our Private Sector Program, timeliness and quality are important measures of success in serving the Federal sector. For FY 2006, our target for Measure 1.1.2 was to resolve 50% of Federal sector hearings in 180 days or fewer. We did not meet our goal, resolving 43.6% of hearings cases in 180 days or fewer. Our ability to achieve this goal was impacted by staffing imbalances in our field offices. We utilized complaint transfers to shift our workload, and as a result, it took more
time for these cases to be processed.

Other accomplishments in managing the hearings caseload include the following:

Obtained more than $51.9 million in monetary benefits, compared with $58.6 million in FY 2005.

We made significant gains in processing our Federal sector appellate inventory during FY 2006. Our goal for Measure 1.1.3 was to resolve 55% of appeals within 180 days or fewer. In FY 2006 we resolved 6,465 appeals, 59% of them within 180 days of their receipt. We were able to surpass our goal because of effective management of the appellate inventory, strategic inventory management projects and technological innovations.

Other accomplishments in managing the appellate caseload include the following:

The end-of-year appellate inventory stood at 3,887, which, while above the FY 2005 ending inventory, was a more than 67% reduction from the inventory high of 11,918 appeals in January 2000.

Although the average processing time of all appellate closures rose from 194 days in FY 2005 to 220 days in FY 2006, the average processing time for appellate closures in FY 2006 marks a 53% reduction from FY 2002.

The Commission has been successfully implementing its initiative on Promoting and Expanding Mediation/ADR in our private and Federal sector programs. As an enforcement tool, mediation has proven beneficial in advancing the agency's mission in an effective and efficient manner.

Private Sector Mediation Program: The EEOC’s mediation program has been very successful and has contributed to our ability, over the past few years, to manage our growing inventory and resolve charges in 180 days or fewer. In FY 2006, the EEOC’s National Mediation Program secured 8,201 resolutions, which is more than the 7,909 reported last year. We secured more than $109.1 million in monetary benefits for complainants from mediation resolutions.

Three measures highlight important aspects of our private sector mediation program: employer participation, the confidence that employers and charging parties have in the program, and workplace improvements resulting from ADR resolutions. Although participants almost uniformly view our mediation program favorably (see a discussion of Measure 1.2.3 in the Performance Results section), the percentage of employers agreeing to mediate is considerably less than the percentage of charging
parties agreeing to mediate. Beginning in FY 2004, we implemented Measure 1.2.2 to increase the number of charges in which employers agree to mediate. In FY 2006, 12,590 employers agreed to mediate, a slight increase from the 12,527 that agreed to participate in FY 2005. As part of our efforts to increase the participation of employers in the mediation program, we have encouraged employers to enter into Universal Agreements to Mediate (UAMs). These agreements reflect the employer’s
commitment to utilizing the mediation process to resolve charges. Many employers entered into these agreements in FY 2006, with the result that we now have 1,097 UAMs (142 National/Regional UAMS and 955 Local UAMs). This is an increase from our FY 2005 level of 907 UAMs (100 National/Regional UAMS and 807 Local UAMs).

Participant confidence in our program remains high, with our FY 2006 figures reflecting that 96.8% of all participants would return to EEOC’s Mediation Program in the future. This exceeds our target for Measure 1.2.3 of maintaining a 90% satisfaction rate. We believe this high confidence level helps with our continuing efforts to convince parties to charges, particularly employer representatives, of the value of the mediation approach.

Under Measure 1.2.1, we assess the impact of our mediation efforts on employees in their workplace. This measure is a companion to Measure 1.3.1. discussed earlier. For FY 2006, 4% of the resolutions in our mediation program, or 229 out of 5,727, resulted in employers agreeing to make changes to their workplace practices, policies, and procedures. Our goal for FY 2006 was that 3.1% of mediated resolutions would contain provisions relating to improving the workplace. These workplace
improvements benefited over 52,200 persons in addition to the specific individuals who received relief under the settlement. This compares favorably to our FY 2005 achievement of 171 mediated resolutions that had workplace impact benefits.

Federal Sector Mediation Program: Using ADR techniques to resolve workplace disputes throughout the Federal Government can have a powerful impact on agencies’ EEO complaint inventories and, in turn, the Commission’s hearings and appeals inventories. Resolving disputes as early as possible in the Federal sector EEO process improves the work environment and reduces the number of formal complaints, allowing all agencies, including the EEOC, to redeploy
resources otherwise devoted to these activities. In addition, a growing number of agencies have incorporated dispute prevention techniques into their ADR programs, further increasing productivity and reducing the overall number of employment disputes.

Measure 1.2.4 seeks to increase the percentage of Federal employees who participate in ADR during the pre-complaint stage to 50% or higher by FY 2009. Data submitted by Federal agencies at the close of FY 2005 indicate that there were 42,412 instances of pre-complaint EEO counseling across the Federal Government. Of that number, the parties participated in ADR in 18,634 cases, or 45.4% of the time. This is an increase in participation rates from 23% in FY 2002, and surpasses the target
rate for FY 2005 of 40%.

The Commission’s efforts in promoting and expanding mediation/ADR at all stages of the Federal EEO complaint process also appear to be having a positive effect on Federal agencies’ EEO complaint inventories, as the number of formal complaints filed in FY 2005 declined by 5.3% over the previous year. As more agencies expand their efforts to offer ADR during the informal process, we expect to see continued decreases in the number of formal complaints filed, which will reduce
costs for complainants and all Federal agencies, and enable agencies to focus resources on their primary missions.

EEOC continues to actively pursue a variety of ways to assist Federal agencies improve participation in alternative dispute resolution by identifying and sharing best practices, providing assistance in program development and improvements, providing training to Federal employees and managers on the benefits of ADR, and maintaining a web page that serves as a clearinghouse for information related to Federal sector ADR. We will continue to expand technical assistance efforts with agencies to
encourage the development of effective ADR programs and promote ADR training among government managers and staff.

To have a meaningful impact on discrimination, we approach our enforcement activities strategically. We employ our resources in ways that will achieve maximum results, while still protecting the rights of the individual. Through focused and strategic enforcement efforts under all of the statutes we enforce, we seek to broadly influence policies and practices in the American workplace and to bring justice and opportunity to all. In April 2006, to enhance our strategic enforcement of the
statutes, the EEOC made the fight against systemic discrimination an agency-wide priority. The Commission unanimously adopted the recommendations contained in an internal task force report that focuses on strengthening the Commission's nationwide approach to investigating and litigating systemic cases.

The task force, led by now Vice Chair Leslie E. Silverman, defined systemic cases as “pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic location.” Recommendations adopted by the Commission included the following:

Systemic investigations and litigation will be conducted in the field, and the systemic investigation and litigation units in Headquarters will be eliminated.

Each district in the field must develop systemic plans to ensure that the Commission is identifying and investigating systemic discrimination in a coordinated, strategic, and effective agency-wide manner.

The Office of General Counsel should facilitate the staffing of systemic cases using a national law firm model, whereby cases are staffed with employees who have the expertise needed in each particular case.

An effective litigation program provides relief for victims of discrimination, many of whom have no other recourse, and it encourages employers to settle cases earlier in EEOC’s administrative enforcement process. Also, publicity about our high impact cases and other litigation increases employer compliance with the statutes we enforce and educates employees and employers of their rights and responsibilities under the law.

In FY 2006, EEOC field legal units filed 370 merits lawsuits and 32 subpoena enforcement and other actions. Legal staff resolved 382 merits lawsuits for a total monetary recovery of over $44 million. Of these resolutions, 294 contained Title VII claims, 49 contained ADA claims, 50 contained ADEA claims, and 8 contained EPA claims. We also resolved 34 subpoena enforcement and other actions during the fiscal year. In terms of dollars recovered in direct and intervention lawsuits by statute,
EEOC recovered more than $34 million in Title VII resolutions, nearly $5.5 million in ADEA resolutions, almost $3 million in ADA resolutions, $73,800 in EPA resolutions and $1.7 million in concurrent suit resolutions. At the end of FY 2006, the number of cases on the EEOC’s active docket that involve multiple aggrieved parties or challenges to employment policies was 256 cases, or 43.3% of our total caseload.

For many years, we have achieved a 90% rate of success in our litigation program. We established Measure 1.3.3 in our Strategic Plan to maintain this high level of success while allowing us to continue pursuing cases that have the potential to develop the law in the public interest. Throughout the entire measurement period, we expect to maintain at least a 90% level of success, using a 6-year rolling average of successful lawsuits to account for minor year-to-year fluctuations that can
result from a limited database of observations. For FY 2006, we exceeded our target, achieving a 6-year rolling average success rate
of 92.7%.

We established Measure 1.3.2 in our Strategic Plan to reflect our focus on litigating cases that are expected to have a high impact on reducing discrimination and removing barriers in the workplace. High impact cases frequently affect large numbers of individuals, including many who are not party to the case, and can lead to positive changes throughout a wide geographic area, industry, or employer community. While many of our cases are expected to have a broad impact, we have selected the
following five cases, resolved in FY 2006, to illustrate this measure.

EEOC v. John Pickle Co. (N.D. Okla. resolved May 24, 2006). The Commission alleged that a fabricator of products used in the petrochemical and power industries discriminated against East Indian steel fabrication workers (welders, fitters, roll/brake operators, and electrical maintenance personnel) in wages and other terms and conditions of employment and subjected them to a hostile work environment because of their race and national origin. EEOC’s suit
was consolidated with a private action filed by 52 East Indian employees seeking relief under the Fair Labor Standards Act (FLSA), State tort law, and 42 U.S.C. § 1981.

Defendant, through a contract with an Indian company, Al Samit International, recruited the claimants, all citizens of India, to come to the United States for jobs they were told would last at least 2 years, with possible long-term employment after that. Many of the claimants left good jobs or their own successful businesses, and some obtained loans from their families and friends to pay large fees required by Al Samit. EEOC participated in a 2-week bench trial on the issue of whether
the plaintiffs were employees or trainees under the FLSA.

After the EEOC and co-plaintiffs prevailed on this issue, the court held another 2-week bench trial and decided for plaintiffs on all claims. The court found that defendant and its President misrepresented the pay and living and working conditions the East Indian employees would receive in the United States; failed to pay them the minimum wages and overtime premiums required under the FLSA; paid them less than similarly situated non-Indian employees because of their race and national
origin; and subjected them to a hostile work environment and disparate terms and conditions of employment because of their race and national origin. The hostile work environment and disparate terms and conditions of employment included numerous offensive comments about the claimants’ ancestry, ethnic background, culture, and country; threatening to physically harm them; threatening to deport them; requiring them to live in substandard housing and to subsist on poor quality, rationed
food; subjecting them to greater testing requirements, lower job classifications, and less desirable job assignments; and restricting their movement, communications, worship opportunities, and access to health care. The court awarded a variety of damages under all claims, and the total recovery on EEOC’s claims was around $650,000.

EEOC v. Cracker Barrel Old Country Store, Inc. (N.D. Ill. resolved Mar. 13, 2006). The Commission alleged that defendant subjected employees in three Illinois stores to sex and race discrimination and retaliation. Defendant subjected female and black employees to a hostile work environment, and required black employees to wait on customers that white employees refused to serve and to work in the smoking section. According to the suit, management officials at
the three Illinois stores failed to take effective corrective action to stop the harassment and other discrimination, and the company took no action in response to complaints reported to the company’s complaint hotline. Under the 2-year consent decree, defendant will pay $2 million into a settlement fund. Fifty-one individuals are eligible to receive payments from the settlement fund, and any undistributed payments will be distributed to a nonprofit organization that benefits
women’s and/or minority workplace interests in one or more of the communities in which the stores are located. Defendant must provide annual training to managers on discrimination, including harassment and retaliation issues, and to all employees on workplace harassment.

EEOC v. SPS Temporaries, Inc.; Professional Personnel Management Corp.; Jamestown Container Lockport, Inc.; Jamestown Container Corp.; and Whiting Door Manufacturing Corp. (W.D. N.Y. resolved Nov. 22, 2005). The Commission alleged that the largest temporary employment agency in Buffalo, New York, and two of its clients engaged in various violations of Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. The suit alleged
that SPS: (1) failed to refer applicants for temporary employment based on their race, gender, pregnancy, national origin, age, disability, and responses to preemployment medical inquiries; (2) violated the Commission’s recordkeeping regulations by intentionally and systematically destroying documentary evidence during the EEOC’s investigation; (3) required applicants for temporary employment to complete a preemployment questionnaire that elicited information regarding
potential disability; (4) failed to hire/refer a charging party for a machinist position because it regarded him as disabled due to his disclosure of a medical condition on a preemployment medical questionnaire; (5) discharged a second charging party from a sales representative position for questioning defendants’ failure to hire the first charging party; and (6) discharged a third charging party from a service coordinator position because of her pregnancy. In addition,
according to the suit, one client asked the temporary agency not to refer female applicants and another client asked the agency not to refer black or female applicants.

The EEOC entered into separate consent decrees with the defendants, settling the case for a total of $580,000 in monetary relief to be administrated through a claims fund. The 4-year SPS decree enjoins future discrimination, including complying with discriminatory requests from clients and requiring applicants for temporary employment to complete preemployment questionnaires containing questions that may reveal information about actual or potential disabilities. The SPS decree also
requires the distribution of a notice regarding resolution of the case and a memorandum setting forth the coverage of Federal employment discrimination laws to all applicants, employees, and clients. SPS must also place job advertisements for temporary positions in specified newspapers and send job notices to specified organizations, with the goal of increasing applications from blacks, Latinos, females, disabled individuals, and persons 40 years old and above. SPS will provide the EEOC
with semiannual reports on the race, sex, age, national origin, and disability status of applicants for temporary employment. The Whiting Door and Jamestown Container decrees (3 years each) require training, the adoption of nondiscrimination policies, and reporting on the hiring of temporary employees and on temporary employment agencies each defendant uses.

EEOC v. Paul Hall Center for Maritime Training and Education and Seafarers International Union (D. Md. resolved Nov. 14, 2005). The Commission alleged that the defendants discouraged individuals age 40 and above from applying for, and denied them admission to, a seafarers’ apprenticeship program. Paul Hall operates an apprenticeship program for deep sea merchant seafarers and inland waterways boatmen. Graduates of the program become eligible for
membership in the union, which places many of them with cooperating shipper-employers. One of the eligibility criteria for admission was being “between the ages of 18 through 25.” Application requests from a number of individuals in the protected age group were marked “too old.” According to the suit, after defendants dropped the age limit from the application form, they continued to exclude applicants in the protected age group.

Award-Winning Attorneys

Robert A. Canino, Regional Attorney, Dallas District EEOC, was a co-recipient of the American Bar Association’s first “Federal Labor and Employment Attorney of the Year” award. Mr. Canino, who has served for a number of years on the Worker Exploitation Task Force with Department of Justice, Department of Labor and other agency representatives, was asked by an underfunded, local practitioner for help with a lawsuit he had filed involving over 50 East Indians who were
recruited under false pretenses by the defendant to work at its company as welders or in similar jobs under a special visa program. Mr. Canino immediately saw an opportunity to extend the reach of EEOC’s laws to cover these victims of “human trafficking.” On his recommendation, the Commission approved EEOC’s filing suit, and EEOC’s case was filed and consolidated with the private case. After nearly three and a half years of intense litigation, including two
bench trials of two weeks each, the court ruled in favor of the EEOC and the private plaintiffs on all claims, and awarded them $1.24 million and pre-judgment interest.

The lawsuit was resolved through a 5-year consent decree following defendants’ unsuccessful interlocutory appeal to the Fourth Circuit challenging EEOC’s regulation extending the age discrimination prohibitions of the ADEA to all apprenticeship programs. The appeals court ruled that EEOC’s regulation was a valid exercise of the agency’s rulemaking authority. Under the decree, the defendants will pay aggrieved individuals $625,000 for lost wages. The decree
enjoins defendants from imposing any upper age limit in recruiting applicants for or admitting applicants to the apprenticeship program. It also enjoins defendants from discriminating based on age (40 or older) against individuals who inquire about the program, apply for the program, or are enrolled in the program. In all written and electronic recruiting and admissions materials for the program, defendants will state that they do not discriminate on the basis of age.

EEOC v. S&Z Tool Co., Inc. (N.D. Ohio resolved Aug. 16, 2006). The Commission alleged that a Cleveland manufacturer of precision metal-formed products and assemblies refused to hire women and African Americans into laborer and machine operator positions at its plant because of their sex and race, and failed to retain employment applications. According to the suit, defendant rejected qualified female applicants in favor of lesser qualified male applicants.
Evidence showed that women were employed only as clericals and blacks were not employed at all. External measures of availability showed statistically significant disparities between defendant’s employment of women and blacks in laborer and operative positions and their representation in the relevant labor market. Under the 39-month consent decree, defendant will pay $940,000 into a fund to compensate at least 19 individuals, and the fund administrator will identify additional
potential claimants. In addition, the defendant will make good faith efforts to increase recruitment of female and black applicants, appoint an EEO Coordinator, and retain extensive hard copy and computer records regarding its recruitment and hiring efforts. Defendant will also submit reports to the EEOC indicating application flow and hiring data by race and sex.